Citation Nr: 0505598
Decision Date: 01/27/05 Archive Date: 03/14/05
BOARD OF VETERANS' APPEALS
DEPARTMENT OF VETERANS AFFAIRS
WASHINGTON, DC 20420
DOCKET NO. 03-19 258 ) DATE JAN 27 2005
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On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada
THE ISSUE
Entitlement to service connection for post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
M. Taylor, Counsel
INTRODUCTION
The appellant had active service from July 1977 to May 1982 and from July 1983 to February 1985. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO).
The appellant was afforded a travel board hearing before the undersigned Veterans Law Judge in March 2004. A transcript of the hearing has been associated with the claims folder. The Board notes that the appellant provided a waiver of agency of original jurisdiction (AOJ) consideration for additional evidence submitted at the hearing.
FINDING OF FACT
PTSD is attributable to service.
CONCLUSION OF LAW
PTSD was incurred in service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
A private record of treatment, dated in November 1974, reflects an assessment of post-traumatic cranio-vascular dysfunction with probable hyperventilation syndrome and chronic anxiety. The examiner noted that the appellant had a long history of 'quick temper' since childhood. In an October 1976 record of treatment, occasional temper tantrums were noted.
Treatment records, dated in August 1981, note the appellant had difficulty coping with stress. A history of a diagnosis of explosive personality disorder was noted. The examiner noted a long history of inability to control his anger and of lashing out physically at individuals. On examination, the impression was intermittent explosive disorder. No psychosis or disabling neurosis was noted. The record notes a diagnosis of "TSD." A September 1981 report notes the appellant's history of having sustained trauma to his left hand in 1977 during boot camp. He stated his hand was stepped on, fracturing the long finger. Treatment records, dated in January 1982, reflect diagnoses of explosive personality disorder, possible post-concussion sydrome.
A March 1982 separation examination report shows that psychiatric examination was normal.
An April 1983 entrance examination report notes that psychiatric examination was normal. His neuropsychiatric status was assigned a profile of "1." On the accompanying medical history, he denied having or having had frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. In a July 1983 medical history, he denied having or having had frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort.
A July 1983 record of treatment notes the appellant's history of a tibular fibia fracture to left leg three years earlier while skydiving.
A Medical Board report, dated in August 1983, reflects a diagnosis of narcissistic personality disorder. The report notes that the appellant showed intense rage, frustration, and fear of loss of control. He was noted to display a need for constant attention and admiration. No evidence of psychosis or disabling neurosis was noted. The report states that his narcissistic personality disorder had considerable influence on his ability to cope with his physical limitations.
Treatment records, dated in January 1984, note the appellant was stabbed once below the shoulder blade. The assessment was stab wound, right thorax, by an alleged attacker with whom he had been involved in an argument.
In October 1984, provisional diagnoses were explosive personality disorder, aggressive personality disorder, and narcissism. The report notes the appellant complained of harassment and humiliation. The impression was narcissistic personality disorder with explosive and borderline features manifested by grandiose sense of self, marked feelings of rage in response to criticism or indifference, entitlement, and lack of empathy. The examiner stated that a personality disorder was a fixed, immutable maladaptive way of interacting with the environment. The examiner noted that the appellant had had six months of inpatient psychiatric treatment and that his response was, at best, marginal. The examiner added that the appellant completely lacked insight into his own responsibility for his difficulties. The lack of insight was noted to be pathogenic for a personality disorder. The examiner stated that the appellant was most likely to escalate and make threats of violence if his needs were not met.
A December 1984 record of treatment notes a diagnosis of narcissistic personality with explosive temperament. The examiner noted an inability to adjust to the demands of service, despite leadership methods, nonmedical counseling, advice, disciplinary, or other appropriate action.
A January 1985 report notes the appellant had an explosive personality disorder and that his temper in dealing with subordinates caused problems in maintaining good order and discipline. A report of psychiatric evaluation reflects that a narcissistic personality disorder existed prior to service entrance. The report notes that the disorder was so severe that his ability to function effectively in service was significantly impaired. The January 1985 separation examination report shows that the appellant had a diagnosis of narcissistic personality disorder.
On a June 1985 medical history, the appellant denied having or having had frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. An October 1998 VA outpatient treatment record reflects diagnoses of organic mood disorder and depressive disorder not otherwise specified.
In a February 1999 statement, the appellant's wife stated that she had been married to him since 1994. She asserted that physical ailments that he had, to include nightmares about being stabbed, sleeping difficulty, avoidance of experiences during service, anxiety, sadness, depression, irritability, agitation, anger, resentment, and violent tendencies, were a result of emotional turmoil.
On VA examination in October 1999, the examiner stated the C-file had been reviewed. The examiner noted that PTSD had been related to a car accident in 1994 and a parachute accident. The assessment was PTSD. The examiner stated that the appellant's symptoms were related to experiences that he had during service.
An April 2000 VA outpatient treatment record notes the appellant had been treated for PTSD and an affective disorder since October 1998. The appellant asserted that contributory conditions were a parachuting accident, an assault in which he was stabbed, his survival of the marine barracks bombing in which many died, and the adversarial process of his discharge. The examiner stated that it was likely that the events were contributory to the appellant's condition.
In a statement in support of the claim, received in July 2001, the appellant stated that he had nightmares about falling since a parachuting accident during service. He related that both the stabbing and having to testify against the fellow soldier who stabbed him were emotional and traumatic. He related that during boot camp in the summer of 1977, a drill instructor purposely stepped on his hand.
A July 2001 VA outpatient treatment record reflects a diagnosis of PTSD. The examiner stated that mood disorder symptoms clearly complicated the presentation in the appellant's case. The examiner opined that they were derivative of his life situation, especially his sense of worthlessness in not being self-supporting, having destroyed his first marriage and threatening his current wife when he was out of control. The examiner stated that functional problems seemed to be a consequence of PTSD. The examiner concluded that PTSD and its sequelae had greatly interfered with the appellant's social and vocational functioning.
On VA examination in June 2002, Dr. O., M.D., stated the C-file had been reviewed. Dr. O. stated the following:
Claimant indicates that this is an evaluation for PTSD. When I asked about intrusive and recurrent thoughts or memories, he said he worries about his wife leaving him. He sates he has things from the service that bother him, a lot of things, such as, they took his manhood away; he use[d] to be afraid of nothing. He was involved in a group in the service for explosive personality. He thought he was invincible, but now he is afraid to go out in public [] and has to have his back to the wall. He sates he is afraid to go out in public because he is more afraid of himself than of anyone else; he would have killed the guy that stabbed him but his body gave out on him. His fear that he will attack others keeps him in the house.
When I stopped claimant and pointed out that the comments about PTSD symptoms he has so far given me had nothing to do with PTSD, he became extremely angry. He then gave the following symptoms:
Dreams bother him: he has dreams of dropping, falling, of being stabbed, has them all the time; he would not tell me how many times a week he has them. Claimant states he avoids the VA and military people and news on TV and bookstores with magazines about the war and bombings; he avoids them because they bring back things that happened in the military, e.g., parachute accident and getting stabbed and being a coward (that is, someone else went to Beirut and was killed instead of him; he didn't go because of medical problems. ) He has difficulty falling asleep. He has outbursts of anger. He has difficulty concentrating when he has long things to do that last long periods of time. Claimant does not describe avoiding activities or situations similar to the trauma that happened in the military. He doesn't like war movies because they make him think about what he didn't do and what he should have done.
Regarding symptoms I was asking about, claimant stated, 'I have a hard time thinking what you want and what to remember.'
. . .
Clear and definite symptoms that are not caused by something else and may have their root in PTSD: Dreams of being stabbed. Being reminded of the parachute accident and of being stabbed. (His thoughts about being stabbed seem to be more of a regret that he couldn't catch the guy that stabbed him and beat him up.) The other[] symptoms seem muddied by his narcissistic personality disorder (his concern for the welfare of others extends only so far as it affects him and makes his life difficult), his explosive disorder (which has been a life long problem and was not made worse in the military), and depression. Claimant also takes no responsibility for his behavior and his excessive and irrational anger response to others. Instead, he seems to think that such a response shows that he is a man. Claimant also tends to exaggerate his problems and symptoms.
H. Diagnostic Status: Axis I Intermittent Explosive
Disorder
Major Depression
Axis II Narcissistic Personality Disorder
Axis III Hypertension per claimant
Axis IV Stresses at level 3 to 4, including unemployment,
recently bought a home
Axis V GAF functioning currently
due to Explosive Disorder at
level 35
GAF functioning currently due to Depression at level 45, with suicidal ideation
Claimant describes poor psychosocial functioning due to Explosive Disorder, with it causing problems at work, at home, and in society in general. He does not describe psychosocial functioning problems related to PTSD. Most of his problems stem from Explosive Disorder, with some stemming from Depression.
In a July 2002 report, G. R. E., LCSW, stated that Dr. O.'s diagnosis/opinion was questionable and appeared to be influenced by the appellant's angry outburst that was elicited by her approach to him and the lack of time need to thoroughly evaluate the appellant. G. R. E. added the following:
[The appellant's] Axis I May include Intermittent Explosive Disorder and Major Depression but this clearly all started after the numerous traumas that occurred to him in [service].
Dr. [O.] also stated that [the appellant] has an Axis II of Narcissistic Personality Disorder. Again I think that his egocentric view is not due to a long standing Personality Disorder but due to Traumas that occurred during [service].
In an October 2002 report from the appellant's private examiner, C. P. C., Ph.D., the appellant's reported history of having had PTSD for 22 years was noted. The appellant stated that his problems began after being in service for 10 years. The diagnoses were as follows:
Axis I: Post-traumatic stress disorder, chronic, recurrent, secondary to events occurring; major depressive disorder, chronic, recurrent; intermittent explosive disorder, secondary to rages and anger.
Axis II: Personality disorder, [not] otherwise specified, with passive, dependent, narcissistic, defeating personality characteristics.
Axis III: Hypertension and chronic somatic problems with knee and leg dysfunctioning.
Axis IV: Psychosocial stressors: medical, social, emotional, total unemployablity
Axis V: Current GAF: 35
Highest GAF past year: 45-50.
The examiner stated that it was apparent that the appellant's life had changed drastically because of his problems. The report notes that the appellant had been divorced, had substance abuse, nightmares, paranoia, trouble holding jobs, and lack of any feeling. The examiner added that his life had been a constant struggle due to the above experiences. The examiner stated that he required review again for PTSD emanating from his duty experiences.
In a statement received in November 2002, the appellant's mother stated that the appellant did not have explosive personality problems as a child. She stated that she noticed a change in her son after a parachute accident. She added that he became fearful. She stated that after being stabbed he became very defensive and unusually aggressive. She stated that he was paranoid of being hurt again. She related her belief that the evaluation by Dr. O was inaccurate.
On VA examination in September 2003, a history of injury during service was noted, including a stabbing. A parachute accident was noted in 1979. Repetitive nightmares of falling and fear of heights was noted. A drill instructor was noted to have crushed his hand with his foot in 1977. The diagnosis was PTSD. The examiner stated that the appellant met the criteria for PTSD with all of the three categories of symptoms comprising most of the 17 symptoms as well as significant depressive symptoms. The examiner stated that he was totally and permanently disabled as a result of the PTSD, which developed as a result of service.
In a letter received in March 2004, Dr. V. stated that he had known the appellant since he was seven years old. He stated that after separation in 1982, he noticed the appellant was withdrawn and having physical problems with his legs and back from a parachuting accident, and from having his hand crushed. He stated that the accidents during service had a negative impact on the appellant and led to many of the physical and psychological problems he was experiencing.
Criteria
Service connection means the facts demonstrate that a disease or injury, which results in current disability, was incurred or aggravated in active military service or, it is proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2004).
Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2004).
Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2004); a link, established by medical evidence, between current symptoms and an in-service stressor; and, credible supporting evidence that the claimed in-service stressor occurred. 38 U.S.C.A. § 1154 (West 2002); 38 C.F.R. § 3.304(f) (2004).
When after consideration of all of the evidence and material of record in an appropriate case before VA there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the appellant. 38 C.F.R. § 3.102 (2004).
When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
VCAA
There has been a significant change in the law with the enactment of VCAA. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). To implement the provisions of the law, the VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). The amendments became effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(b) which became effective August 29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly, in general, where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. The Act and implementing regulations eliminate the concept of a well-grounded claim, redefine the obligations of VA with respect to the duty to assist, and supersede the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded).
First, VA has a duty to notify the claimant and the representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, VA must "also request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b)(1); see 38 U.S.C.A. § 5103A(g). VA has satisfied its duty to notify by means of a letter from the RO to the appellant in January 2004.
In this case, the claimant was informed of the duty to notify, the duty to assist, to obtain records, and examinations or opinions. The claimant was specifically advised of the type of evidence which would establish the claims and the claimant was afforded additional time to submit such evidence. Thus, the claimant has been provided notice of what VA was doing to develop the claims, notice of what the claimant could do to help the claims and notice of how the claims were still deficient. The appellant was also provided notice that he should submit pertinent evidence in his possession per 38 C.F.R. § 3.159(b)(1). He was advised of how and where to send this evidence and how to ensure that it was associated with his claims.
In this case, the initial AOJ decision was made prior to November 9, 2000, the date the VCAA was enacted. In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II) the Court stated that it recognized that where the notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. However, it indicated that the appellant had the right to VCAA content-complying notice and proper subsequent VA process. The AOJ has issued a statement of the case in June 2003. At the hearing, the appellant and his representative indicated there was no further evidence. Thus, in sum, the claimant was informed of the duty to notify, the duty to assist, to obtain records, and opinions. The claimant was specifically advised of the type of evidence that would establish the claim. The claimant has been provided notice of what VA was doing to develop the claim, notice of what the claimant could do to help the claim and notice of how the claim was still deficient.
Second, VA has a duty to assist the claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. In the instant case, VA has made efforts to develop the record. The records satisfy 38 C.F.R. § 3.326. The Board finds that VA has done everything reasonably possible to assist the claimant. Accordingly, the Board concludes it should proceed, as specific notice as to what evidence the claimant could or should obtain has been provided in effect and no additional pertinent evidence was submitted. There is no indication that there is any additional relevant competent evidence to be obtained either by the VA or by the claimant, and there is no other specific evidence to advise him/ to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). The claimant has had sufficient notice of the type of information needed to support the claim and the evidence necessary to complete the application. Therefore, the duty to assist and notify as contemplated by applicable provisions, including VCAA, has been satisfied. As such, the Board finds that the development requirements of the VCAA have also been met. VA has done everything reasonably possible to assist the claimant. Accordingly, appellate review may proceed without prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993).
In the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). VA has satisfied its duties to notify and to assist the claimant in this case.
Analysis
The appellant asserts that he has PTSD as a result of service. Service medical records are negative for a diagnosis of PTSD. Rather, the records show diagnoses of personality disorders, to include explosive personality disorder, narcissistic personality disorder, and aggressive personality disorder.
The Board has been presented with a remarkable conflict in the record. The Board does accept that the veteran experienced in-service events that would qualify as a stressor. Therefore, the issues before the Board are whether the veteran has PTSD and, if present, whether such is due to the in-service events.
The fact that the veteran has a personality disorder and had a personality disorder during service is not determinative. Rather, the Board must determine, with an unbiased eye, whether the veteran has PTSD due to the in-service events. As noted, and is obvious from the evidence, professionals have examined the veteran and have reached diametrically opposed conclusions. Treating examiners and some VA examiners have diagnosed PTSD. It is clear that some of the examiners have actually become advocates for the veteran. Against this background, examiners with far less personal interaction with the veteran have determined that the veteran does not have PTSD.
Ultimately the statement of Dr. Votraw is the most convincing statement. The doctor knew the veteran before, during and after service and he noticed a change in the veteran. In this case, a detailed review of the record fails to provide this Judge with a basis for according some evidence more probative value than other evidence of record. The Board finds little reason to believe that VA treating examiners and private examiners are less competent or more competent than the examiner who determined that the veteran did not have PTSD.
The Board is unable to conclude which examiners are more competent. Clearly, the mere fact that an examination for compensation purposes ruled out PTSD is no longer a deciding factor. At the same time, the treating physician rule is not applicable to VA cases.
It is abundantly clear that the veteran has a personality disorder. However, the Board has doubt as to whether the diagnosis of PTSD is justified. Such doubt is resolved in favor of the veteran.
ORDER
Service connection for PTSD is granted.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs